DATE: 20050712

DOCKET: C43167

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KOURAKOS, NICK(Appellant)

BEFORE:

ROSENBERG, MACFARLAND and ROULEAU JJ.A.

COUNSEL:

R. Boggs

for the appellant

Robert Gattrell

for the respondent

HEARD & RELEASED ORALLY:

July 12, 2005

On appeal from the judgment of The Honourable Mr. Justice McNeely dated October 25, 2002, upholding the conviction and the sentence imposed by The Honourable Mr. Justice Ross dated March 6, 2002.

E N D O R S E M E N T

[1] Unfortunately there are no reasons from the summary conviction appeal court judge. The reasons of the trial judge do not address nor reconcile the contradiction in the arresting officer’s testimony concerning the appellant’s manner of speech and movements which were the foundation for the finding of impaired driving. This was an error of law. See R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) at para. 46.

[2] Accordingly, leave to appeal is granted, the appeal is allowed, the conviction is set aside and a new trial ordered on the charge of impaired driving.